Life in Transition, Part III: The legal hurdle

Transgender people who seek to amend their birth certificates and IDs face an uncertain legal path.

San Antonio Express-News

He arrived an hour early at the law office in downtown San Antonio, out of an abundance of caution and excitement. To get there, Joseph spent an hour and a half on city buses he found cumbersome and confusing, carrying with him a legal-size envelope containing his passport and other legal papers. During that time, the 24-year-old transgender man fielded a series of calls from his mother, who was more nervous than he was about what he was going to do that day.

Sarah was still wrapping her head around the fact that her daughter had become her son, a radical and dangerous notion in the country they had left behind. But she was his mother, no matter what, and she loved him fiercely. After all, it was his safety and well-being that had brought them to Texas. And so after Joseph had left the squat, brick home, where they were live-in caretakers for terminal patients, and walked to the bus stop, she called him for updates.

Had he arrived at the law firm yet?

Did he speak with the lawyer?

When would he go to the courthouse?

“Don’t keep me waiting,” she told him in Arabic, warning him to notify her of the outcome as soon as possible.

Now Joseph — an alias to protect the safety of him and his family — sat on a wooden bench at the Nichols Law Firm, across from two women perched on a couch. He twiddled his thumbs as he waited.

It had been four months since Joseph had contacted the practice, at the suggestion of his immigration attorney in Houston. The law firm, he had been told, could help him legally amend his name and gender marker — the M or F that appears on vital personal documents, everything from driver’s licenses to birth certificates. For many transgender individuals, having identification and records that match their newly chosen names and physical appearance can make all the difference in securing a job or housing.

But ambiguous law meant these cases were at the discretion of judges across the state, some of whom would not hear them at all. Nowhere in Texas statute does it spell out how to legally amend the documentation of transgender people. Instead, the petitions that Justin Nichols writes for his clients rely on rules established by Texas agencies that issue identification records.

Forms for the Department of Public Safety and the Department of State Health Services require a court order certifying a gender change for transgender people who wish to amend their driver’s licenses and birth certificates. For this reason, many transgender Texans have no documents matching their gender identity, a reality that became all the more important when a state legislator began filing bills this year that would restrict public restroom access based on the gender listed on a person’s birth certificate.

Since it began taking gender marker cases in earnest in late 2015, the law firm had brought name and gender change petitions for more than 100 transgender Texans before Bexar County judges. The certified court orders validated their gender identity as permanent and binding in the eyes of the law, a circumstance that led the office to aptly name its gender marker program “Make It Official.”

Never, though, had they had a client quite like Joseph. More than a year earlier, Joseph, his mother, and one of his sisters had quietly stolen away from the United Arab Emirates, arriving in Texas in early 2016 on visitor’s visas. UAE had been their home since the early 2000s, when they sought safety from the erupting war in Iraq. They enjoyed a good life there, as Sarah built two successful businesses.

By the time Joseph reached his early teens, his parents had divorced and his father had returned to Iraq. Joseph, his mother and his siblings moved in with well-off relatives. The arrangement worked for years, until Joseph, who always knew he was different from the girls at his gender-segregated school, realized he was transgender.

Death threats from other relatives — promises of an “honor killing” — followed. So did verbal and physical harassment, being shunned by universities and employers, threats by men who said they could make him a woman if he just gave them an hour. The family wondered what future Joseph could possibly have in a country so structured around strict delineations of gender, so unwilling to accept who he was. The same country that, in 2016, would deny entry to Gigi Gorgeous, a popular transgender model and makeup artist from Canada, on her way to Dubai.

Later, in his application for asylum to the United States, Joseph explained his predicament. He no longer had legal status in the UAE, and if he returned to Iraq, he would be stripped of his rights. If his relatives did not follow through on the death threats, someone else surely would. He knew the authorities would not protect him, “because they do not protect people like me.”

Joseph and his sister, Taylor, left first, flying to Texas with several suitcases stuffed with clothes and rooming with relatives in Houston. Sarah initially stayed behind, intending to sell her businesses and get her affairs in order. In the end, there was no time. A month later, Sarah left the house in the early morning hours. Through the windshield of the car, past a dashboard cluttered with papers, she took one last look at the ornate front gate of her home before she left everything behind — her work, car, bank account, furniture, family, memories.

After months of sleeping on the floors of relatives’ crowded apartments in Houston and Austin, Joseph and his family eventually ended up in San Antonio, where they met a woman who had recently founded an assisted living home. She welcomed them as family, providing them with steady work and a place to live.

Here, surely, they could start over again.

Before Joseph applied for work authorization in the U.S., he wanted the country to recognize who he was. A man. He didn’t want a record of how he’d been viewed back home. He didn’t even know that person anymore. The way to accomplish that would be to go to court.

And so as he and the other clients waited to head over to the Bexar County courthouse, Jamey Bartram, then director of the office’s gender marker program, bustled in and out of the room. Bartram was responsible for guiding the steady stream of transgender Texans who sought out the firm’s services, communicating with clients and ensuring they had transportation. Bartram also gathered the necessary paperwork from clients: a detailed questionnaire, a notarized affidavit that the client was of sound mind, an FBI compatible fingerprint card, a letter from a mental health professional confirming that the name and gender marker changes were in their best interest.

“OK, we’ll be leaving in a couple minutes,” Bartram announced to the room.

He explained that they would walk to the courthouse, where they would go through security. Then, they would answer some questions in front of a judge, something that was largely a “formality,” he explained. The papers had already been filed. All they needed was the judge’s signature. Yet as Bartram talked, the face of one of the women remained tense.

There was no need, Bartram assured her. These were family law judges who heard case after case of divorce and child cruelty, situations that tore families apart. They would be glad to hear a happy case, for once.

A call came through on Joseph’s cell phone.

“Hi, mom.”

“Was that your mom again?” Bartram asked.

Nichols joined the group. Bartram slid on a pair of aviator sunglasses.

“Well, come on. Let’s go do it,” Nichols said.

Joseph’s day in court was long overdue. His case, already complicated by his immigration situation, grew thornier when President Donald Trump signed an executive order limiting travel for citizens of seven predominantly Muslim countries, including, initially, Iraq. After that development, his petition had to be rewritten. His case file was significantly thicker than the other cases the Nichols firm had previously taken on. Bartram had made a point of collecting as many documents from Joseph as he could to ensure his case was airtight.

Now, after months of back and forth, Joseph stood in the lobby of the Bexar County courthouse on an April afternoon, fiddling with the top of the envelope. Nichols disappeared behind the heavy wooden doors to the presiding court, a catch-all docket for civil proceedings, to confirm whether they would start there that day or knock on the doors of “friendly” judges who they had worked with in the past, who were more likely to approve their petitions.

“It’s pretty packed in there today,” Nichols said to Bartram upon reemerging. The two conferred for a few moments.

“I think we’re going to stay down here and not go to another court,” Bartram told the group.

The group filed into the courtroom and sat on wooden benches already crowded with people scrolling through their phones or staring vacantly into space. The minutes dragged by.

“Did you miss the appointment?” Sarah asked Joseph in a text.

After a quarter of an hour, Judge David Canales glanced at Nichols.

“I’m trying, Mr. Nichols,” he said. “Too many cases.”

A stack of files in hand, Nichols whispered to Canales, who appeared perplexed. Nichols and Bartram left the courtroom.

“They’re just really slow,” Bartram said quietly when he returned a few minutes later. “We’re going to go try upstairs.”

A few minutes more, and Bartram ushered everyone toward the door and into the hallway.

“I literally walked the courthouse to find a judge, but they’re all in jury trials,” Nichols said. Increasingly, he explained, it was becoming more difficult to find judges who would hear their gender marker cases.

“I’m going to do whatever I can. I have other things to do, but this is so important for you,” Nichols said to Joseph, before turning to the group. “I’ll do anything I can.”

Canales would be in court for another hour and a half, so the group continued to wait in the hallway. They sat on the long wooden benches against the walls, watching as a stream of people exited the courtroom. Joseph did not text his mother about the delay, lest he worry her further.

Finally, Nichols returned with an update. The judge wanted to see them in his chambers to offer some privacy. The group disappeared into the courtroom. Minutes later, Nichols, Joseph and the two other clients filtered back out into the hallway.

“The judge is not denying your request,” Nichols said cautiously.

Instead, they would need to return to the courthouse the next day and present the legal justification for their requests. The court staff was not up to speed on the case law, he said, even though he had given Canales a brief that outlined the law concerning these cases weeks ago.

“That’s the result today, is there is no result,” he said. The woman who had been so nervous before looked crestfallen.

Never before had he run into this situation, Nichols explained. There was consternation about transgender people in the Texas Legislature this session, not to mention the growing number of transgender people across the state who were seeking to get their gender markers amended.

On the walk back to the law office, Joseph was quiet. Nichols looked over at the woman who still wore her disappointment clearly on her face.

“I want you to know I’m going to do my damndest to get this done,” Nichols told her.

For some time, Nichols and others in the transgender community had feared something like this would happen. Gender marker changes in San Antonio had for years happened quietly, even as Bexar and Travis counties became hubs for the practice. In both counties, the district courts run on a presiding system, meaning that judges can hear each other’s cases, regardless of where a case is assigned. It also meant attorneys like Nichols could seek out appointments with judges who were familiar with the law surrounding gender marker changes, who would consider and approve their petitions.

Even attorneys who work in the state’s other major cities find that the cases are processed more easily in Austin and San Antonio, where a cohort of judges regularly take the cases. Though she works in Houston, attorney Daney De La O regularly brings her transgender clients to Austin to have their gender markers amended by the courts there. In Houston, the cases would be automatically assigned to specific judges, some of whom might not be sympathetic to her clients’ plight.

Sen. Lois Kolkhorst, a Republican from Brenham, alluded to gender marker changes in mid-March while laying out Senate Bill 6, the bill that would restrict bathroom access based on the gender on people’s birth certificates. Birth certificates can be changed in Texas, she explained to the Texas Senate.

What Kolkhorst did not explain, however, was how undefined that process still was in Texas, and the barrier it represented for many transgender Texans. Several years ago, few attorneys in the state specialized in the cases, and some of those who did were known to charge up to $3,000. In an attempt to rectify what he saw as an injustice — and, he acknowledged, to also undercut the competition — Nichols took cases for free the first year of his program, before setting a $600 flat fee — $300 to file the case, $25 for four certified copies, the rest for the cost of the legal work. Over time, De La O shaved her fee down to $800.

Kolkhorst also did not explain that among attorneys and transgender activists, there remained a pervasive dread that if the state’s hardline Republicans got wind of the process, they would find a way to take it all away. After Trump won the presidential election, Nichols saw an influx of gender change clients with urgent notes asking that their cases be resolved before Inauguration Day.

In July, public testimony for another bathroom bill Kolkhorst filed in the special session highlighted the problems with using birth certificates to identify gender. Transgender people who were born out of state pointed out that even with a Texas court order, some states would not amend their birth certificates. Parents talked about how convoluted and arbitrary it could be to find the right judge on the right day. Many mentioned time and cost as barriers. Sen. Sylvia Garcia brought up a bill she had filed that would change the process of amending a birth certificate from a judicial process to an administrative one. Later, relenting, Kolkhorst accepted amendments allowing driver’s licenses and handgun licenses as forms of identification.

Moreover, a recently appealed gender change petition had introduced even more uncertainty. In January 2015, a transgender man in his late 20s requested a name and gender change in Houston. At a hearing, the man’s attorney asked him a series of standard questions for name changes but provided no evidence supporting his transition, such as letters from mental health professionals. His attorney cited a section of the Texas Family Code regarding proof of identity to apply for a marriage license — one option is “an original or certified copy of a court order relating to the applicant’s name change or sex change.” But the man was not applying for a marriage license. The court approved the man’s name change but denied the gender change. When the man appealed his case, the Fourteenth Court of Appeals rejected the request, too.

Worried that judges would interpret that ruling as reason to reject his gender marker petitions, in February Nichols sat down and wrote a memo outlining why that should not be the case. He wrote that the Texas Legislature had empowered state agencies to create their own rules, and those agencies had established a way to change a person’s gender on state documents.

“The notion of a court proceeding to change a person’s gender designation is not only contemplated, but actually utilized and required by the state’s agencies charged with handling the most sacred of identification documents,” Nichols wrote. The Houston man’s case, he wrote, had simply lacked evidence and firm understanding of the law.

Nichols included details about the case in a brief he sent to Joseph’s judge weeks earlier.

The following morning, Joseph prepared for another lengthy bus ride to the law office.

His mother was disappointed by what had happened the day before. People change their names all the time, she reasoned. “Why the big deal about this? Everything is tight here,” Sarah said that morning, in between tending to patients.

They had been in the country for a more than a year, and an answer on their asylum application was also unclear and frustratingly slow, in all likelihood still years away. “When are we going to live life without thinking?”

Joseph also found the whole situation odd. In chambers, the judge had asked him if he’d had any kind of surgery. He hadn’t, but he had been on testosterone for nearly three years, and that had been struggle enough. Unable to ask a doctor to write him a prescription, he illegally obtained the hormone. On his phone, he carefully kept note of the date of every shot, injecting himself weekly at first and then bimonthly. For an entire year Joseph had done this, with no concept of the correct dose. His voice quickly deepened, but severe, painful acne spread across his face. His joints and back ached. They still did.

But until he had a definitive answer, Joseph was determined to remain optimistic. Otherwise, it was too easy to become lost in worry. So he pulled up Google Maps on his phone, his eyes scanning bus routes. He disappeared deeper into the home to change out of his sweats.

The worn envelope in his hand, Joseph walked over to say goodbye to his mother, who was busy tending to a patient. “She heard it,” he said as he made his way to the door. Sarah stuck her head out of the doorway.

“Have a good day, honey,” she said.

“Wish me luck.”

“Pray, honey. Pray.”

Joseph set out on the 20-minute walk to the bus stop, passing quiet houses and yards with barking dogs. He cut through a grassy field spotted with rocks. The sun beat down, unrelenting. Without a car, everything here took longer.

At the bus stop, he sat on the black metal bench and placed the envelope beside him. He had taken the wrong bus before, but he was sure he was in the right place this time. Almost an hour passed. Taking out his phone, he peered past the cracked screen protector to look at the routes again. Across the street, the bus he planned to board sped by. Joseph sighed.

By the time Joseph was seated on a bus, it was nearing 1 p.m. The trip downtown could take anywhere from one hour to two, depending on his luck. When a woman boarded, a baby with cherubic cheeks in tow, Joseph craned his head to catch a better look at the tiny girl’s navy blue dress and protruding ears. He made a funny face. The baby giggled. Joseph grinned. He longed for a family of his own, children of his own. He’d even contemplated freezing his eggs.

“If I want to have babies, I want to have them be mine. Same face. It would be beautiful.”

Downtown, the bus dropped Joseph off at a corner near the courthouse, where he would return later that afternoon. He paused at San Fernando Cathedral to take a photo, crouching down to fit the entire edifice into the frame. A man passing on the sidewalk smiled at Joseph. “It’s such a nice feeling,” Joseph said. “You’re out and everyone’s smiling at you. Here I’m so happy. I can just smile whenever I want.”

At the office, Nichols laid out the plan. This time, they would be better prepared. They had arranged for an LGBTQ expert to testify, along with a licensed clinical social worker who had evaluated Joseph and some of Nichols’ other transgender clients. If things didn’t work out, they knew a Travis County judge who would take the cases. Nichols said he did not want Joseph to become the test case for gender marker changes in Bexar County.

Nichols ushered Joseph and the women into a conference room. Joseph traced circles with his fingers on the sturdy wooden table. He was nervous, but also comforted by Nichols’ words.

“I assure you, there’s been much going on since I saw you yesterday,” Nichols said. But, he admitted, there was no way to guarantee the judge would say yes. “No one goes to the courthouse for certainty. I don’t know for sure what’s going to happen.”

Joseph Montaldi, the social worker, walked in.

“How y’all feeling?” asked Montaldi, who usually told his clients how easy it was to change their gender markers.

“Nervous,” said the woman who had been so concerned the day before.

“I’m excited,” Joseph said. “Am I the only one excited here?”

The group settled into an uncomfortable silence. Bartram bustled in and out. He saw the woman’s worried face and offered her a drink to calm her nerves. She drained the glass he brought her, and the smell of alcohol wafted through the air. Nichols came in to say that the expert wouldn’t be able to make it.

Eventually, Joseph looked over at Bartram.

“I want to say that even if this doesn’t work, I really appreciate it,” Joseph told him.

Before they left, Joseph’s phone rang. His mother wanted to know when they were going to court.

A half hour later, the group stood once again in the courthouse hallway. They had more waiting to do as Judge Canales looked over the papers. Ten minutes turned into 20, then 40. Just shy of 4 p.m., Nichols walked over. He had just spoken with the judge, who had told him he did not plan to make a decision that day but would hear their testimony. And, Nichols said, were he to deny their requests, he would do so without prejudice, meaning the cases could be re-filed elsewhere.

Montaldi stood first before the judge. He explained that he had worked with the transgender community in some capacity for nine years, previously treating patients at an HIV clinic in New Orleans and now specializing in LGBTQ issues as a therapist. He explained how he evaluated transgender people for gender dysphoria, and noted that having surgery was not a prerequisite to be diagnosed as transgender. It was “hugely important,” Montaldi testified, for transgender people to have documents matching who they were, for legal and mental health reasons, and to protect them against discrimination. As Montaldi spoke, Canales nodded.

Nichols, whose face had flushed deep red, asked him if Joseph met the criteria for being transgender.

“Absolutely,” Montaldi said.

Since Joseph had already testified the day before, another client next stood before the judge. Nichols asked her a series of questions about why she was there that day. Canales smiled at her.

“Do you believe your confirmation as female is permanent and irreversible?”

“Yes.”

Nichols handed the petitions to the judge, who thanked them. The whole thing had taken 10 minutes.

Outside the courtroom, the group seemed to release a collective sigh. Everyone began talking at once.

“I’m guessing he’s going to sign the order,” Nichols said.

“He smiled at all of you,” Bartram said. “It’s hard to smile at someone if they’re going to ruin your life.”

Migrating to the courthouse steps, Nichols promised everyone he would let them know as soon as he heard back from the court. He reached out and shook Joseph’s hand.

“I’m hopeful,” Nichols told him. Then he raised his voice so the others could hear. “All right, let’s head back.”

Six days later, Nichols received a brief email from the judge.

“Thank you for your patience while I took the petitions under advisement. They are granted in part and denied in part, as follows: The request for name changes are GRANTED. The request for gender/sex marker changes are DENIED WITHOUT PREJUDICE.”

At times, Joseph’s transition felt like it slowed to a crawl. The following weeks were one of those times. It had been years since he had furtively visited a doctor who confirmed what he suspected about himself, and years more since he’d started taking hormones. He wanted to advance his transition, and his life. He’d been waiting his whole life to feel comfortable in his own skin.

But he also knew how lucky he had been to make it to America. He knew most transgender people where he was from had few options, if they had any at all. And so as days passed after his petition was denied, as the lawyers worked on a solution, he tried not to fret, and he kept busy.

When a tiny three-legged poodle came scratching at their back door, they took care of her for nearly three weeks, until neighbors claiming to be her owner demanded her back. On Craigslist, Joseph’s family saw that an Iraqi man was selling a used maroon Kia. They bought it, securing reliable transportation for themselves for the first time since they came to Texas.

Meanwhile, rumors swirled in San Antonio’s transgender community that Bexar County judges had stopped approving gender marker cases altogether. Advocates wrote to Nichols, asking what had happened.

Four weeks after the hearing, Joseph and the other clients received a text from Bartram. They would return to court the following week and try again with a different judge.

Though Joseph’s family now had a car, his mother still struggled to navigate the city’s freeways on her own. So for the third time, Joseph readied himself for the bus trip downtown.

Across the city, Nichols was hopeful that proceedings would go differently that day. Over the past month, the firm had paused their gender marker program and overhauled their process. Petitions were rewritten and would be sent to the court ahead of time. They now required an affidavit from a medical professional about the physiological changes a person had undergone as part of their transition. Instead of taking transgender clients to the courthouse weekly, they would go twice a month.

The two women who had gone to court with Joseph last time were not there. Bartram called Joseph, who was still an hour away because of bus delays. He would meet them at the courthouse. Nichols looked over at the older transgender woman who was sitting on the couch with her sister.

“Sorry for all the drama,” Nichols said. “You’ve waited how many years?”

“A lifetime,” she said. “A lifetime.”

While they waited, Nichols explained to the woman that they were correcting her gender, not changing it. They began practicing the questions he may need to ask her in front of a judge.

“Currently, on your birth certificate, your driver’s license and other identification documents, what is reflected as your gender?”

“Male.”

“And is that incorrect?”

“It is incorrect.”

Nichols sat down beside her. He knew what they were doing was scary. For him, it was a legal challenge, an intellectual exercise. For her, it was her life.

Later that day, Joseph and the woman entered the same courtroom where he’d been told no the month before. Nichols walked to the front of the courtroom and handed the papers to Judge Norma Gonzales. He quickly returned from the bench, utter surprise written on his face.

“We’re done,” he mouthed.

The group hurried into the hallway.

“Is that even possible?” Joseph asked. He bounced on the balls of his feet. Nichols hugged Joseph, who then embraced Bartram.

Bartram walked over to a counter to order certified copies. A wide grin spread across Joseph’s face. His words spilled out.

“He just gave her the paper, she signed it and that’s it,” Joseph said. “It was — wow.” Finally, he could apply for authorization to work here, as himself.

When Bartram handed him his order, Joseph flipped through the pages, savoring its words.

On the way back to the law office, Joseph released a loud sigh. He was relieved. He was happy. Bartram would give him a ride home, but that wouldn’t be for several more hours. Inside the office, Joseph pulled his phone from his pocket and greeted his mother. He erroneously told her the petition had been denied again.

“I’m not going to tell her till I get home,” Joseph said after hanging up.

“Is she a worrier?” Bartram said.

“She is.”

“I hope you can outrun her.”

A few hours later, Bartram pulled up to the house, Joseph seated beside him. Sarah greeted Bartram with a hug.

“Are you gonna solve this problem?” she asked.

“Actually, he has something to tell you.”

Joseph handed her the court order. She fetched a pair of glasses with square, dark frames and perched them on her nose. For several moments, she was quiet. Her eyes scanned the pages.

“You got it,” she finally said quietly.

“Yeah.”

Sarah feigned smacking him across the head before enveloping him in a hug. Bartram burst out laughing. Joseph chuckled at the trick he had played on his mother.

“He can apply,” Sarah said, as they made plans to order a celebratory pizza. “He can apply.”

It was just the first of many hurdles Joseph would have to face before he had permanent residency. But now he could look to the future. He had plans to get a job and help his family get a place of their own, to go to college and study nutrition.